In these terms and conditions the following words and expressions have the following meanings:
- “BHF” means the British Heart Foundation whose registered office is at Greater London House,180 Hampstead Road, London NW1 7AW and its wholly owned subsidiaries;
- “BHF Code of Practice” means the BHF’s supplier ethical code of conduct made available to the Supplier from time to time;
- “Conditions” means these Conditions of purchase as may be amended from time to time in accordance with clauses 3 or 14.3;
- “Contract” means the contract for the supply of the Goods and/or Services (incorporating these Conditions) formed by the Suppliers’ acceptance of the Purchase Order;
- “Goods” means the goods specified in the Purchase Order;
- “Price” means the price for the Goods and/or Services calculated in accordance with clause 9;
- “Purchase Order” means BHF’s order to the Supplier attached to these Conditions;
- “Services” means the services, including any deliverables, specified in the Purchase Order;
- “Specification” means the specification agreed between BHF and the Supplier in respect of any Purchase Order describing the nature of the Services to be provided and/or the appearance and function of the Goods to be supplied and any performance criteria which such Goods and/or Services are required to fulfil;
- “Supplier” means the individual, firm or company to which the Purchase Order is addressed.
2. Application of terms
2.1. Subject to any variation under clause 3, the Purchase Order is placed subject to these Conditions which apply to the Contract to the exclusion of (i) any and all printed terms and conditions of the Supplier; and (ii) all other agreements, terms and conditions and representations (whether oral or written or in any format) made between the parties at any time.
2.2. These Conditions cannot be varied, suspended or amended except in accordance with clause 3 or clause 14.3.
2.3. The Purchase Order shall constitute an offer to purchase the Goods and/or Services subject to these Conditions (“Offer”), which shall be deemed to be accepted on the earlier of the Supplier giving written notice of acceptance or any act by the Supplier consistent with fulfilling the Purchase Order.
2.4. All of these Conditions shall apply to the supply of both Goods and Services except where the application to one or the other is expressly specified.
3.1. BHF may by written notice request changes to the Goods and/or Services (“Change Request”).
3.2. If BHF submits a Change Request then the Supplier shall, within 3 working days following receipt of the Change Request, provide:
3.2.1. a written estimate BHF of:
a) the likely time required to implement the change;
b) any applicable variation to the Price, which shall be no higher than the Supplier’s standard prices in force at the time of the proposed change; and
c) any other likely impact of the proposed change; or
3.2.2. written notice that the Supplier is unable to comply with the Change Request.
3.3. If BHF does not wish to proceed with the change for any reason whatsoever or if the Supplier is unable to comply with the Change Request then there shall be no change.
3.4. If BHF wishes to proceed with the change then the parties shall agree in writing to vary the Contract and/or the Purchase Order.
3.5. If the Supplier is unable to comply with the Change Request then BHF may terminate the Contract in accordance with clause 4.3.
4. Commencement, term and termination
4.1. The Contract shall commence on the date specified in the Purchase Order and continue until:
4.1.1. in the case of Goods, completion of delivery of the Goods; and
4.1.2. in the case of Services, for the term or Period specified in the Purchase Order. If no term or Period is specified then it will continue until terminated in accordance with the provisions of clauses 4.2 or 4.3
4.2. BHF may terminate the Contract immediately on written notice if:
4.2.1. the Supplier commits a material or persistent breach of the Contract which is not capable of remedy or, where such breach is remedial, fails to remedy that breach within 7 days of receipt of a written notice of the breach requiring it to be remedied;
4.2.2. the Supplier (i) enters liquidation, receivership or bankruptcy; or (ii) suspends, or threatens to suspend, payment of its debts; or (iii) is unable to or deemed unable to pay its debts as they fall due; or (iv) commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts;
4.2.3. the Supplier suspends or ceases or threatens to suspend or cease to carry on its business or a substantial part of its business; or
4.2.4. there is a change of control of the Supplier.
4.3. Either party may terminate the Contract at any time by giving the other party at least 30 days’ written notice. Termination of the Contract in accordance with this clause 4.3 shall not relieve the Supplier or BHF of any of their respective obligations as to any Goods delivered and/or Services already performed or work in progress (provided that the Supplier shall, upon receipt of any notice to terminate, take immediate steps to mitigate any further or unnecessary costs being incurred without the prior consent of BHF).
4.4. On termination of the Contract for any reason:
4.4.1. the accrued rights and remedies of the parties shall not be affected; and
4.4.2. clauses which expressly or by implication have effect after termination shall continue in full force and effect; and
4.4.3. the Supplier shall immediately return to BHF all documents, records, materials and any other information or property belonging to BHF.
4.5. If BHF terminates this Contract under clause 4.2 then BHF shall be entitled to claim from the Supplier:
4.5.1. the cost of transferring its business to another supplier;
4.5.2. repayment of BHFs investment costs in the acquisition of the Goods and/or Services, save for the actual cost of the Goods or Services themselves; and
4.6. any other direct loss incurred by BHF arising as a result of the termination.
5. Quality and description
5.1. The Supplier shall ensure that the Goods:
5.1.1. comply with any agreed Specifications;
5.1.2. correspond with their description and any agreed sample supplied to BHF by the Supplier;
5.1.3. are of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended) and fit for any purpose held out by the Supplier or made known to the Supplier by BHF expressly or by implication, and in this respect BHF relies on the Supplier’s skill and judgment;
5.1.4. where they are manufactured products, are free from defects in design, material and workmanship and remain so for 12 months after delivery;
5.1.5. comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods in the UK and the country of manufacture;
5.1.6. comply with the BHF Code of Practice;
5.1.7. if they are manufactured to any design, pattern, drawing or any other form of intellectual property right owned by BHF, are supplied exclusively to BHF; and
5.1.8. on delivery are accompanied by a delivery note and are accurately marked and labelled to enable BHF to identify the Goods.
5.2. In providing the Services, the Supplier shall:
5.2.1. meet any performance dates for the Services specified in the Purchase Order or notified to the Supplier by BHF;
5.2.2. co-operate with BHF in all matters relating to the Services, and comply with all reasonable instructions of BHF;
5.2.3. perform the Services with reasonable care, skill and diligence in accordance with industry best practice;
5.2.4. use personnel who are suitably skilled and experienced to perform tasks assigned to them and in sufficient number to ensure that the Supplier’s obligations are fulfilled in accordance with the Contract;
5.2.5. ensure that the Services and any deliverables developed in relation to the Services comply with any agreed Specification and shall be fit for any purpose expressly or impliedly made known to the Supplier by BHF;
5.2.6. ensure that all goods and materials supplied and used in the Services or transferred to BHF will be free from defects in workmanship, installation and design;
5.2.7. comply with all applicable statutory and regulatory requirements relating to the provision of the Services; and
5.2.8. comply with the BHF Code of Practice.
6. Packaging and delivery
6.1. The Supplier shall ensure that the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition.
6.2. The Supplier shall not be entitled to charge for the cost of packaging materials in addition to the Price.
6.3. Unless otherwise agreed in advance by the parties in accordance with clause 6.4, BHF shall not be obliged to return any packaging materials to the Supplier.
6.4. If the Supplier requires BHF to return any packaging material then it must be clearly stated on the delivery note and BHF may at its sole discretion confirm to the Supplier that it agrees to comply with the Supplier’s request. Any such packaging material shall be returned to the Supplier at the Supplier’s own cost.
6.5. The Goods shall be delivered to and/or the Services shall be performed during BHF’s business hours:
6.5.1. at the delivery address; and
6.5.2. on the due date (“Due Date”) or during the period (“Period”),
specified in the Purchase Order. If in relation to Goods no Due Date is specified for delivery, then the Due Date shall be within 28 days from the date of the Purchase Order.
6.6. The Supplier shall not deliver the Goods in instalments without BHF’s prior written consent. Where it is agreed that Goods may be delivered in instalments then they may be invoiced and paid for separately. Any failure by the Supplier to deliver any one instalment on time or at all or any defect in an instalment shall entitle BHF to the remedies set out in clause 7.
7.1.1. the Goods are not delivered by the Due Date or within the Period; or
7.1.2. the Services are not completed in accordance with the Contract; or
7.1.3. the Goods and/or the Services do not comply in all material respects with the undertakings set out in clauses 5.1 or 5.2 respectively,
then, without limiting any of its other rights or remedies, BHF shall have the right to any one or more of the following applicable remedies, whether or not it has accepted the Goods and/or performance of the Services:
a) to terminate the Contract with immediate effect by giving written notice to the Supplier;
b) to reject the Goods (in whole or in part) and return them to the Supplier at the Supplier’s own risk and expense;
c) to require the Supplier to repair or replace the rejected Goods, or to provide a full refund of the price of the rejected Goods;
d) to refuse to accept any subsequent delivery of the Goods and/or performance of the Services which the Supplier attempts to make;
e) to recover from the Supplier any costs incurred by BHF in obtaining substitute Goods and/or Services from a third party;
f) where BHF has paid in advance for Services that have not been provided by the Supplier, to have such sums refunded by the Supplier; or
g) to claim damages for any additional costs, loss or expenses incurred by BHF which are in any way directly attributable to the Supplier’s failure to carry out its obligations under the Contract.
7.2. These Conditions shall extend to any substituted or remedial Goods and/or Services.
7.3. BHF’s rights under the Contract are in addition to its rights and remedies implied by statute and common law.
8. Risk and property
8.1. Risk in the Goods shall pass to BHF at the time of delivery of the Goods to BHF in accordance with these Conditions.
8.2. Title in the Goods shall pass to BHF on payment in full for the Goods in accordance with these Conditions.
9. Price and payment
9.1. The Price for the Goods and/or Services shall be the price set out in the Purchase Order or, if no price is quoted, the price set out in the Supplier’s published price list in force as at the date of the Purchase Order.
9.2. The Price is exclusive of amounts in respect of value added tax (“VAT”) and inclusive of all costs and expenses. No extra charges shall be effective unless agreed in writing and signed by BHF.
9.3. BHF shall, on receipt of a valid VAT invoice from the Supplier, pay the Supplier such additional amounts in respect of VAT as are chargeable on the supply of Goods and/or Services.
9.4. The Supplier may invoice BHF:
9.4.1. for Goods on or at any time after completion of delivery; and
9.4.2. for Services on completion of the Services or at such other time or times as agreed in writing between the parties.
9.5. Each invoice shall include such supporting information as reasonably required by BHF.
9.6. BHF shall pay correctly rendered undisputed invoices within 30 days of the date of the invoice in accordance with the payee details set out in the invoice.
9.7. If BHF fails to pay an amount properly due and payable by it under the Contract, the Supplier shall have the right to charge interest on the overdue amount at the rate of 0.5% per annum above the Bank of England base rate from the due date up to the date of payment. This clause 9.7 shall not apply to payments that BHF disputes in good faith.
9.8. BHF may, without limiting its other rights and remedies, set off any amount owing to it by the Supplier against any amount payable by BHF to the Supplier.
10. Indemnity and insurance
10.1. The Supplier shall on demand indemnify and keep BHF fully and effectively indemnified against all costs, expenses, damages and losses awarded against or incurred by BHF arising as a result of or in connection with:
10.1.1. any claim made against BHF any actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the supply of Goods and/or Services, to the extent that the claim is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors; or
10.1.2. any claim made against BHF by a third party for death, personal injury or damage to property arising out of or in connection with defects in Goods, to the extent that the defects in the Goods are attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors.
10.2. The Supplier shall maintain in force, with a reputable insurance company, professional indemnity insurance, product liability insurance, employer’s liability insurance and public liability insurance to cover the liabilities that may arise under or in connection with the Contract and shall, on BHF’s request, produce the insurance certificate giving details of cover and the receipt for the current year’s premium.
11. Protective covenants
11.1. The Supplier confirms that it:
11.1.1. is not directly or indirectly involved in the production, marketing or sale of tobacco products (other than an insignificant or de minimis part) in any country (“Restricted Business”);
11.1.2. does not derive its income (other than an insignificant or de minimis part) from acting as the main or a significant advisor or consultant to a business that produces, markets or sells tobacco products in any country (“Restricted Activity”); and
11.1.3. does not have nor will they have during the life of the Contract any commercial relationship with, nor sponsorship, support or other contact or arrangement with any individual, entity, organisation or brand owner that is a Restricted Business or carries out any Restricted Activity.
11.2. Any breach of the warranty at clause 11.1 shall be an irremediable material breach of this Agreement for the purposes of clause 4.2.1.
12.1. A party (“Receiving Party”) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (“Disclosing Party”), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business, its products and services which the Receiving Party may obtain. The Receiving Party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause 11.1 as if they were a party to the Contract. The Receiving Party may also disclose such of the Disclosing Party’s confidential information as is required by law, any governmental or regulatory authority or by a court of competent jurisdiction.
13. Intellectual Property
13.1. The Supplier:
13.1.1. warrants that it has full, clear and unencumbered title to the Goods, and has full and unrestricted rights to sell and transfer the Goods to BHF;
13.1.2. confirms that, to the extent that the Goods and / or Services and any deliverables are manufactured to or performed in accordance with or otherwise incorporate any design, pattern, drawing or other form of intellectual property right owned by BHF, the exclusive rights in copyright or any other intellectual property rights subsisting in the Services shall belong to BHF and that neither the Supplier nor any of its employees, agents or subcontractors shall have or shall assert any rights in relation to such intellectual property rights; and
13.1.3. shall, at its own expense, ensure that all requisite approvals have been obtained from any third party intellectual property right owners whose materials are utilised in any way in provision of the Services.
14. Data protection and anti-bribery
14.1. To the extent that the Supplier is required as part of the Services to process any personal data (as defined in the Data Protection Act 1998) on behalf of BHF, the Supplier will:
14.1.1. comply in full with the Data Protection Act 1998 and all other data protection laws and regulations in effect from time to time (“Data Protection Legislation”);
14.1.2. comply with any notification requirements under the Data Protection Legislation;
14.1.3. ensure that it has in place appropriate technical and contractual measures to ensure the security of the personal data and to guard against unauthorised or unlawful processing of the personal data and against accidental loss or destruction of, or damage to, the personal data;
14.1.4. provide BHF with such information as it may reasonably require to satisfy itself that the Supplier is complying with its obligations under the Data Protection Legislation;
14.1.5. promptly notify BHF of any breach of the security measures required to be put in place pursuant to clause 13.1.3;
14.1.6. ensure it does not knowingly or negligently do or omit to do anything which places BHF in breach of its obligations under the Data Protection Legislation; and
14.1.7. indemnify BHF fully against any breach of Data Protection Legislation.
14.2. The Supplier warrants and undertakes that it shall (and shall procure that its employees, agents, subcontractors and any other third party appointed to assist with the provision of the Goods and/or Services) comply with all applicable laws, statutes, regulations and codes of practice relating to anti-bribery and anti-corruption, including but not limited to the Bribery Act 2010.
14.3. Any breach of clauses 13.1 or 13.2 will be a material breach of the Contract.
15. Force Majeure
15.1. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under it if such delay or failure result from events, circumstances or causes beyond its reasonable control (“Force Majeure Event”).
15.2. The Supplier shall use all reasonable endeavours to mitigate the effect of a Force Majeure Event on the performance of its obligations.
15.3. If a Force Majeure Event prevents, hinders or delays the Supplier's performance of its obligations for a continuous period of more than 7 days, the Customer may terminate the Contract immediately by giving written notice to the Supplier.
16.1. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to the Services.
16.2. Any notice to be served under the Contract shall be in writing sent by first class post or email to the business postal address or email address of the other party’s nominated executive during working hours between Monday and Friday and shall take effect 48 hours from posting if sent by post and immediately if sent by email.
16.3. Neither party shall assign, novate, hold on trust, transfer, sub-contract, delegate, charge or otherwise deal with all or any part of its rights or obligations under the Contract without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed). Any purported assignment, declaration of trust, transfer, sub-contracting, delegation, charging or dealing in contravention of this clause 14.2 shall be ineffective.
16.4. Unless otherwise permitted by the Contract, no variation of the terms of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
16.5. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
16.6. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy.
16.7. A person who is not a party to this Contract shall not have any rights under or in connection with it.
16.8. The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).